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EUO – condition precedent in Fla

MIRACLE HEALTH SERVICES, INC., A/A/O KIRENIA TAMAYO, vs PROGRESSIVE SELECT INSURANCE COMPANY, No. 3D21-14

I really find the analysis here telling and quite biting.

(1) “Miracle Health sent Progressive four sets of bills for Tamayo’s treatment, which Progressive received on May 21, 2014, June 2, 2014, June 23, 2014 and July 18, 2014, respectively. On June 23, 2014, Progressive sent Tamayo a notice to appear for an EUO, scheduled on July 31, 2014. Tamayo failed to appear for the first and then a second subsequently scheduled EUO. Pursuant to the policy provision requiring the insured to submit to an EUO before receiving PIP benefits, Progressive denied payment of benefits.”

(2) “Progressive answered alleging Miracle Health was not entitled to receive benefits because the insured failed to comply with the condition precedent to receiving benefits under the terms of the policy and section 627.736(6)(g), Florida Statutes (2013). Progressive filed a motion for summary judgment with accompanying affidavit establishing that Tamayo failed to appear for the scheduled EUOs. Miracle Health argued that because three sets of bills were overdue prior to the first scheduled EUO, Tamayo was discharged of her statutory and contractual duty to submit to an EUO.”

(3) “The trial court entered summary judgment in favor of Progressive.”

(4) “Despite this direct legislative response, Miracle Health argues that the policy’s condition precedent is actually a condition subsequent because it is an obligation which arises after the formation of the contract.”

(5)(a) “This argument ignores the basic principle that: “[u]nder well established contract law, a condition precedent is a condition which calls for the performance of an act after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend.” Univ. Hous. by Dayco Corp. v. Foch, 221 So. 3d 701, 704 (Fla. 3d DCA 2017) (quoting Racing Props., L.P. v. Baldwin, 885 So. 2d 881, 882–83 (Fla. 3d DCA 2004)).

(5)(b) “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.”

(5)(c) “Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a reach of contractual duty.”

(6)(a) “Our holding in Amador was limited. In determining whether the insured’s failure to submit to an EUO was a bar to filing suit, “we [held] that, because of the special nature of, and protection afforded by, the PIP statute, upon expiration of the 30-day period, the insurer is itself in breach of the contract and may therefore, not deny an insured the right to access the courts for purposes of enforcing the PIP statute.” Amador,748 So. 2d at 309.

(6)(b) “We cannot, and do not, read Amador for the proposition that an insurer’s failure to pay PIP benefits within thirty days thwarts its ability to investigate the claim or discover facts by discharging the insured’s statutory obligation to comply with conditions precedent to receiving benefit.”

I think this is a good citation to buttress Unitrin.